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Explainer

How Voter Suppression Laws Target Native Americans

Since the federal government formally gave Native Americans the right to vote in 1924 they have had to fight to use it.

Published: May 23, 2022

Native Amer­ican voters living on rural reser­va­tions often use ballot collec­tion services due to limited access to home mail services and polling places. Yet last year, Montana — home to 12 tribal nations — enacted a law that makes it illegal to pay organ­izers who collect completed absentee ballots from voters. 

The law is part of a nation­wide surge in voter suppres­sion legis­la­tion instig­ated by state legis­lat­ors embra­cing former pres­id­ent Donald Trump’s Big Lie of a “stolen” elec­tion. In 2021, states around the coun­try enacted dozens of restrict­ive voting laws, making vote by mail and early voting more diffi­cult, impos­ing harsher voter ID require­ments, and making faulty voter purges more likely.

These laws often dispro­por­tion­ately impact voters of color, poor voters, and young voters. As detailed in a recent White House report, Native Amer­ic­ans are often faced with a unique set of limit­a­tions that further obstructs their access to the ballot. Many reser­va­tions don’t have tradi­tional street addresses recog­nized by the USPS. And ballot drop boxes, polling places, and elec­tion offices are some­times located hundreds of miles away from reser­va­tions.

With the wave of restrict­ive voting legis­la­tion we saw in 2021 and continue to see this year, Native Amer­ic­ans across the coun­try are facing threats of disen­fran­chise­ment.

What is the history of Native Amer­ican voting rights?

When the Consti­tu­tion was rati­fied in 1788, Native Amer­ic­ans living in the United States weren’t considered citizens. When the 14th Amend­ment form­ally gran­ted Black Amer­ic­ans citizen­ship in 1868, it was inter­preted to exclude Native Amer­ic­ans.

In 1924, Congress passed the Indian Citizen­ship Act, finally grant­ing Native Amer­ic­ans all the legal rights of a U.S. citizen. However, despite their offi­cial status as citizens, Native Amer­ic­ans didn’t secure the right to vote nation­wide for nearly four more decades. Although federal law form­ally recog­nized their citizen­ship, the Consti­tu­tion gives the states primary respons­ib­il­ity to decide who is qual­i­fied to vote in state and federal elec­tions, and some states contin­ued to disen­fran­chise Native Amer­ic­ans for years after­ward.

To justify disen­fran­chise­ment, some states argued that Native Amer­ic­ans living on reser­va­tions weren’t qual­i­fied to vote because they didn’t pay state taxes or because they were wards of the federal govern­ment. For example, for decades Arizona courts inter­preted the state’s consti­tu­tion to deny the right to vote to Native Amer­ic­ans as “persons under guard­i­an­ship.” 

It wasn’t until a land­mark decision in 1948 that the Arizona Supreme Court recog­nized the legal right of Native Amer­ic­ans to vote. The same year, a federal three-judge panel in a New Mexico case held that a provi­sion of New Mexico’s consti­tu­tion deny­ing the fran­chise to “Indi­ans not taxed” viol­ated the 14th and 15th Amend­ments. Finally, in 1957, Utah became the last state to remove its laws deny­ing Native Amer­ic­ans the right to vote.

However, even after Native Amer­ic­ans secured the right to vote across the coun­try, states contin­ued to suppress their votes and those of other minor­ity voters through discrim­in­at­ory prac­tices like liter­acy tests.

The Voting Rights Act of 1965 finally provided a frame­work through which voters’ rights would be enforced. Section 5 of that law required states with a history of discrim­in­at­ory voting policies to get federal approval for any changes to their voting rules before imple­ment­ing them in future elec­tions to ensure that the changes would­n’t have a racially discrim­in­at­ory effect on voters. Section 2 also provided voters a mech­an­ism for chal­len­ging discrim­in­at­ory prac­tices in court in juris­dic­tions that were not subject to this “preclear­ance” rule. 

For nearly 50 years, Section 5 preclear­ance helped ensure that states did not deny the right to vote on account of race, color, or member­ship in a minor­ity language group. However, in 2013, the Supreme Court effect­ively gutted preclear­ance in Shelby County v. Holder. The disastrous effects of this decision were imme­di­ate. Many of the states that were previ­ously covered — and the Native Amer­ican communit­ies within them — saw new restrict­ive voting policies enacted in the years that followed. 

Then in 2021, the Supreme Court did further damage to the Voting Rights Act in a case called Brnovich v. Demo­cratic National Commit­tee. In that case, which concerned Arizona policies that dispro­por­tion­ately burdened the rights of Native Amer­ican voters — includ­ing a limit­a­tion on ballot collec­tion — the Court made it harder to chal­lenge such discrim­in­at­ory policies under Section 2.

How do voter suppres­sion laws target Native Amer­ic­ans?

Laws that make voting harder often have a dispro­por­tion­ate impact on Native Amer­ican voters, frequently by design. Many Native Amer­ican communit­ies find voting diffi­cult and inac­cess­ible, often due to inad­equate invest­ment into voting resources and infra­struc­ture on reser­va­tions. And some laws take direct aim at services Native Amer­ican voters rely heav­ily on to over­come exist­ing barri­ers.

Drop boxes and elec­tion offices can be located miles away from reser­va­tions, making voting partic­u­larly burden­some for those communit­ies. The Black­feet reser­va­tion in Montana, for example, is almost the size of Delaware and has some 17,300 enrolled members. And yet, in 2020, it had only four ballot drop-off loca­tions until a success­ful lawsuit brought under Section 2 of the Voting Rights Act provided for an addi­tional satel­lite office on the reser­va­tion.

Some reser­va­tions don’t have any polling places or drop boxes at all, forcing voters to take time off of work and drive miles out of their way to cast their ballots — some­thing many can’t afford to do. Indi­vidu­als on the Duck­wa­ter reser­va­tion in Nevada, for instance, have to travel 140 miles each way to reach the closest elec­tions office in Tono­pah.

The loca­tions of polling places have a signi­fic­ant impact on one’s abil­ity to parti­cip­ate in elec­tions. A 2017 survey of Native Amer­ic­ans repor­ted that 32 percent of respond­ents in South Dakota said that the distance needed to travel to the polls affected their decision to cast a ballot. 

While Native Amer­ican voters have tried to navig­ate these obstacles, some voting policies have provided crucial support for those determ­ined to cast their ballot. For those trav­el­ing long distances, same-day voter regis­tra­tion has been a boon, espe­cially for voters who don’t have access to the inter­net and can’t register online. Paid ballot collec­tion can make cast­ing ballots easier for voters who don’t have easy access to drop boxes by allow­ing a third party to collect and deliver ballots on behalf of other voters. Laws like Montana’s H.B. 176 — which targets Elec­tion Day regis­tra­tion — and H.B. 530 — which goes after ballot collec­tion —threaten to elim­in­ate these options for voters.

Some states are also passing stricter voter ID laws, which can often impact Native Amer­ic­ans more than others. Many voters living on reser­va­tions don’t have tradi­tional street addresses and instead rely on P.O. boxes for mail services. Thus, strict voter ID laws that require address-display­ing forms of iden­ti­fic­a­tion to vote dispro­por­tion­ately burden tribal communit­ies that are less likely to possess qual­i­fy­ing ID. In 2018, 19 percent of Native Amer­ican eligible voters in North Dakota did not have a qual­i­fy­ing ID to cast a ballot under the state’s strict ID law, in compar­ison to 12 percent of other voters across the state.

How can Native Amer­ican voting rights be protec­ted now? 

One route for protect­ing voting rights is the courts. Right now, the Native Amer­ican Rights Fund and the ACLU are chal­len­ging the consti­tu­tion­al­ity of Montana’s H.B. 176 and H.B. 530. In April 2022, a state judge blocked enforce­ment of the two laws while the case proceeds. 

But litig­a­tion can be costly and time-consum­ing. And as explained above, recent decisions by the U.S. Supreme Court have weakened federal protec­tions and limited the tools avail­able to fight discrim­in­at­ory meas­ures in court.

But Congress can help. The bipar­tisan Native Amer­ican Voting Rights Act was intro­duced in the House in August 2021 and was included as part of the Free­dom to Vote: John R. Lewis Act, which was defeated in the Senate in Janu­ary. Endorsed by many Native Amer­ican tribes and advocacy groups, the bill would allow tribes to determ­ine an assort­ment of items pertain­ing to voting, includ­ing the number and loca­tion of voter regis­tra­tion sites, polling places, and drop boxes on their reser­va­tions. It would also require states to accept tribal ID as voter iden­ti­fic­a­tion.

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The United States has a troubled history of discrim­in­at­ing against Native Amer­ic­ans, espe­cially with respect to the fran­chise. With states continu­ing to pass laws threat­en­ing to disen­fran­chise Native Amer­ic­ans across the coun­try, Congress must act now and pass the Native Amer­ican Voting Rights Act.